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TMI Blog2024 (8) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 (5) TMI 302 - BOMBAY HIGH COURT] . We must observe that although we have a pronouncement of a co-ordinate Bench of this Court on the provisions of law, in Hexaware Technologies Limited (Supra) , an affidavit cannot be filed before this Court, to challenge such pronouncement. We are unaware as to how and in what manner the JAO/ the Respondents are advised to file such affidavits. Clearly on affidavit a position being taken that the judgment on a point of law declared by this Court, is not acceptable, is wholly irresponsible. The concerned officers who are supposed to know the Income Tax Act and the law, that the decisions of the jurisdictional High Court would bind them, cannot have an approach of such open disregard to the orders passed by this Court. It is also not the case that before they file any affidavit in the Court they are not legally advised, as to what ought to be an appropriate and proper content of an affidavit, as the law would require the department to file. Also the officer/ deponent needs to know the purpose for which a reply affidavit is necessary in a legal proceeding. A reply affidavit certainly cannot be a mechanical exercise and an empty formality and / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no acceptable justification as to why the proceedings qua the impugned notice under Section 148 would not stand covered by the decision in Hexaware Technologies Limited (Supra). We direct the JAO as also the Chief Commissioner to deposit personal cost of Rs.25,000/- each, - G. S. KULKARNI SOMASEKHAR SUNDARESAN, JJ. For the Petitioner : Mr. Devendra Jain, Advocate. For the Respondents : Mr. Akhileshwar Sharma, Advocate. PC : 1. This is a classic case of an absolute abuse of the powers vested in the public officer namely, the Jurisdictional Assessing Officer (for short JAO ), Income Tax Officer, Ward 3 (3)-Thane. We begin this order saying so, as we find that the JAO has either acted with total nonapplication of mind or otherwise, initiating proceedings against the Petitioner under Section 148A of the Income-tax Act, 1961 (for short the Act ) as also in issuing the notice under Section 148. In our opinion, the irresponsible and/or not an honest conduct (we do not know) of the JAO is further compounded from the reading of the reply affidavit filed to this Petition in which, not a slightest attempt is made, to point out as to why the JAO did not take into consideration the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the faceless mechanism as applicable under the notification dated 29 March, 2022 issued by the Central Government, the impugned notice under Section 148 of the Act was issued to the Petitioner. 5. On the above backdrop, the Petitioner is before the Court challenging the notice under Section 148A(b) and the order passed thereon under Section 148A(d), as also, the notice under Section 148. 6. The primary grievance of the Petitioner to such actions initiated by concerned officers against the petitioner, is that the impugned proceedings are initiated with gross non-application of mind and/or much more than mechanically, as the entire basis of such notices is the amount which was subject matter of consideration of the Assessing Officer in the assessment order which has ultimately resulted in its deletion. So also, the impugned notice under Section 148 dated 8 March, 2024 is issued contrary to the provisions of Section 151A, it is hence, submitted that the impugned actions/notices would be required to be held illegal, including on the basis of the principles as laid down by Division Bench of this Court in Hexaware Technologies Limited Vs. Assistant Commissioner of Income Tax 4 Ors. (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20 December, 2019 and the subsequent appellate proceeding before the CIT (A) culminating into the order dated 26 February, 2024. In such context a perusal of the reply affidavit in fact indicates that quite astonishingly the Assessing Officer has thought it proper not to deal with such vital facts, which were paramount in initiating any reassessment proceedings, on the very same issue, which had attained finality. The JAO in fact proceeded to resort to a Section 148 action, as if there is no assessment order dated 20 December, 2019 and the appellate order passed by CIT (A). This is clear from the reasons the JAO has set out in paragraph 7, 8 and 9 of the reply affidavit. Such statements and/or justifications to initiate action under Section 148A (b) and (d), as rightly pointed out on behalf of the Petitioner, shows something more than a gross non-application of mind. 10. Further, what has disturbed us more, is that when a reply affidavit is filed, it needs to deal with the Petitioner s case in the writ petition, in which the Petitioner has unfailingly annexed the assessment order as also the orders passed by the CIT (A) which are on the amounts subject matter of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted, the Revenue would suffer . But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching in their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities; The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also not the case that before they file any affidavit in the Court they are not legally advised, as to what ought to be an appropriate and proper content of an affidavit, as the law would require the department to file. Also the officer/ deponent needs to know the purpose for which a reply affidavit is necessary in a legal proceeding. A reply affidavit certainly cannot be a mechanical exercise and an empty formality and / or for that matter for any statistical purpose. The present case reflects a very poor state of affairs on the part of the JAOs which is also not being corrected by the higher officials namely, the Commissioner and Chief Commissioner of Income-tax. In the present case even the Chief Commissioner of Income Tax has acted with total non-application of mind. As seen from paragraph 13 of the affidavit, what has been mechanically done is, by some method of online as well as offline, an approval has been accorded by the Chief Commissioner of Income Tax on 7 March, 2024, the same being made available on the order sheet for issuance of the impugned notice. There is no explanation whatsoever as to why such materials which were on the record of the department were not con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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